(From previous issue) :
14. So he submitted that the learned Additional District Judge without considering the material facts, the evidence and the documents produced by the parties arbitrarily passed partial decree basing on mere conjecture and surmises. He submitted that the Arbitration Miscellaneous Case ought to have been decreed in full.
15. Mr Md Jahangir Alam, the learned Deputy Attorney General appeared on behalf of the respondent No. 1, the Government. He finds difficulty to support the judgment and decree of learned Additional District Judge. Learned Deputy Attorney General submits that the petitioners land was requisitioned in case No.16/ 57-58 and notice was served under section 5 (19) of the said Act and compensation was assessed on the basis of market value of twenty four months average proceeding the date of service of notice under section 5 (la) and on 6-1-1983 by gazette notification under section 5 (7) of the said Act the requisition process was completed, the arbitrator in contravention of provision of section 7 (e) of the said Act passed the award the same is being unlawful.
16. In the instant case the requisition came to end on 6-1-1983 the petitioner filed the arbitration case on 8-2-1984 beyond the statutory period and, as such, the application was barred by limitation the award of the petitioners is neither proper nor in accordance with law.
17. Mr Mahbubey Alam, the learned Senior Advocate and Mr MA Sobhan the learned Advocate attained on behalf of the respondent No. 2 and appellant Rajshahi University in the FMA No. 232 of 2012 and FMAT No. 388 of 2012.
18. Mr Alam submits that whenever any immovable property is requisitioned or acquired under the Act there shall be paid composition the amount of which shall be determined in the manner of the properties of a similar description in the vicinity, during the twenty four months preceding of the service of notice having regard to the provisions of section 23 and 24 and sub-section 2 of section 35 of Land Acquisition Act, 1984 so far as the same can be made applicable. On receiving a proposal from the Registrar of the appellant University the land measuring an area more or less 88.97 acres including the respondent lands at Mouza Motihar, JL No.117 under the Police Station Paba, Rajshahi made requisition on 16-12-1959 and 23-1-1961 with a view in permanent acquisition for construction of Rajshahi University under the Land Acquisition Case No. 16/57-58 and, as such, the finding of the learned Judge for recurring compensation during the period of requisition is not sustainable in law.
19. Mr Alam further submits the possession of the land in question was handed over to the requiring body on 24-12-1959 and 25-1-1961 and the owners of the land including the present respondent received 90% advance payment of compensation before taking over and handing over the possession and the learned Judge failed to consider the important matter at the time of making assessment. The certified copy of the three sale deeds produced by the respondents which are being marked as exhibit 1(Kha) in support of their case but those are not applicable in view of the facts and circumstances of the case.
20. In such arguments of the parties we have carefully perused the impugned judgment, the evidences and the exhibited documents produced by the appellants before the learned Additional District Judge. It is admitted that the case land measuring 3.37 acres was requisitioned under section of the (Emergency) Requisition of Property Act, 1948 (Act XIII of 1948) in LA Case No. 16 of 1957-58 for the Rajshahi University and possession was taken on 25-1-1961. It reveals that the case land was acquired by Gazette Notification dated 6-1-1983 and notice under section 7(aa) of the aforesaid Act was issued on 3-1-1984. It is found from the evidences that the case land was bhitti land and mango garden having big fruit bearing mango trees. In this Miscellaneous Case petitioner examined 5 witnesses and the opposite-party examined one witness. PW 1 Md Badrul Ali Ahmed is the son of late Mozlema Khatun. He deposed that the case land measuring 3.37 acre was Mango garden and Bhitti land. There were 13 big fruit bearing Mango trees, 29 Khair trees, 9 Babla trees in the case land. He huther stated that there was no agreement with them by the Deputy Commissioner at the time of preparing final award. He deposed that Gazette Notification was published on 6-1-1983 and they have not taken the amount of final assessment. Government assessed the valuation of the case land at the rate of Taka 825 per acre and the valuation of the trees Taka 61. This valuation is too much law. He claimed the valuation of land at the rate of Taka 15,000 per katha and per acre Taka 9,00,000. He stated that they have submitted the deeds which shows that the valuation of the adjacent land of Mouza Kazla was more than Taka 20,000 per katha at the relevant time. He stated that as the major portion of the land of Motihar Mouza was acquired for the purpose of the Rajshahi University, there was no private transaction of the rest land. So no transfer deed is available at the local Sub-Registrar Office.
He has claimed that Motihar Mouza and Kazla Mouza are side by side. To substantiate his claim he has filed the settlement map and we find that Motihar Mouza and Kazla Mouza are side by side. In the cross examination the opposite-party could not shake his evidence. PW 2 Daud Ali stated that he has homestead near the case land. He stated that the case land is Bhitti land and Mango garden having fruit bearing Mango trees within the Rajshahi City Corporation. He further stated that the valuation of the Mango trees would be Taka 25,000 each. He has further stated that in 1960 valuation of land in this area was ten to twelve thousand taka per katha and in 1983 it was twenty to twenty five thousand Taka per katha. In the cross examination he asserted that in the year 1960 the valuation of the case land was Taka ten to twelve thousand per katha.
PW 3 Md Afsar Ali has corroborated the statement of PW 2 another PW 4 Abdul Khaleque is an employee of the Sub-Registrar Office, Rajshahi. He brought the volume book of the deeds and proved the valuation alleged deeds and their execution. He exhibits the said deeds as marked Exhibits 1 (Ka), I(Kha), I(Ga) and 1 (Gha) PW 5 Md Maherul Haque is the contiguous owner of the case land. He proved the proposal letter sent to him by the Registrar of the Rajshahi University on 18-8-1997 in Memo No. 195/89/97 to sell his contiguous land at Taka 50,000 per katha. This letter has been marked Ext.2. Opposite-parties examined one witnesses in this case to support their assessment. Opposite party DW 1 Md Shafiqul Islam is the solitary witness to depose on behalf of the opposite-parties. He stated that in LA Case No.16 of 1957-58 Government acquired 3.37 acres of land late of Mozlema Khatun in CS Plot No.7 and 18. He stated that he collected the deeds of 24 months of the contiguous land lo assess the valuation. But in the cross examination he admitted that since 22-3-1999 he has been serving in the LA Office of Rajshahi and he did nothing in the present LA Case. He admitted that he was not involved in Assessing the valuation of the case. In such case his evidence about assessment is not acceptable.
From the settlement map it is found that Motihar Mouza and Kazla Mouza are contiguous. Evidences shows that the case land was Bhitti land with Mango garden and it is within the periphery of the Rajshahi City Corporation. The appellants flied tolal 5 deeds and out of these 5 deeds 3 deeds are of the relevant period of Kazla Mouza. These deeds are deed No. 3136 dated 1-2-1982 of Mouza Kazla (Exhibit No.1). In this deed .0124 acre of land has been transferred at Taka 20,000 and if the valuation is assessed per katha it will be Taka 26,613 Exhibit l(Ka) is deed No.21229 dated 23-7-1982 of that Mouza in which 04121 acres of land have been transferred at Taka 20,000 and if the valuation is covered to katha it is Taka 8,000 per katha. Exhibit 1 (Kha) is deed No. 19838 dated 17-8-1981. In this deed .1037 acre of land has been transferred at Taka 36,000 and the price per katha by this deed stands at Taka 5,732. Exhibit 1 (Ga) is deed No. 7150 dated 25-4-1987 in Mouza Motihar in which .04 decimals of land has been transferred at Taka 30,000 and the price per katha stands at Taka 12,375 Exhibit 1 (Gha) is deed No. 5776 dated 18-2-1980. By this deed .0968 acre has been transferred at Taka 45,000 and the price per katha stands at Taka 7,670. The learned Court did not consider exhibit 1 (Ga) and 1 (Gha) as these deeds were not executed during the period of 24 months preceding the date of Gazette Notification Le. 6-1-1983. But the learned Trial Court failed to consider the other three deeds (Ext. No.1 to 1 Kha) which were considered the result of the Arbitration case would lead to decree the same in full. We find that in Ext. 1 which is deed No. 3136 dated 1-21982 the valuation stands Taka 26,612 per katha. In ext.1 (Ka) vide deed No. 21229 dated 23-81982 the valuation stands at Taka 8,000 per katha. In ext. 1 (Kha) vide deed No. 19838 dated 17-8-1981 the valuation stands at Taka 5,732 per katha. Thus the total valuation for kathas of land by these three deeds stands at Taka 40,344 and for one katha the valuation stands at Taka 13,448.
The acquired land is 3.37 acres which is 204.24 kathas and the valuation at the rate of Taka 13,448 stands at Taka 27,46,679. If the average value of Ext. I, 1 (ka) and 1 (Kha) are taken into consideration, it will appear that the petitioner has rightly claimed compensation at the rate of Taka 9 lakh per acre.
21. It is held in Bangladesh vs Abdul Khaleque case is Chittagong Development Authority vs Sultan Ahmed reported in 29 DLR (SC), (1997) Page 110.
"Ownership of the property acquired determines the right to compensation payment of compensation will be determined on the day the property stands acquired."
"Acquisition of the property takes effect from the gazette notification day which is the date for determining compensation.
A requisitioned property before it stands acquired is to pass through various stages as set our in different sub-section of section 5. The property is acquired when the gazette notification is published under section 5 (7) of grading the principles and manner of payment of compensation shall be the governing law. The law, however, may fix a date for the calculation of compensation, different from the date of acquisition.
Interpreted in this way, the owner of the acquired property will get such compensation as the law with amendment stands on the day the property is acquired."
22. It is held in Md Hossain Khan vs Government of Bangladesh reported in 55 DLR 265.
"Emergency Requisition of property Act (XIII of 1948) section 7 (A A)
After a period of 7 years notice under section 7 (A A) was served on the owner of the property. On this score the question of payment of compensation of the acquired property in terms of market value of 1960 does not arise at all. The compensation is to be paid as per market value which was prevailing on the date of acquisition of the property."
23. It appears the suit land was requisitioned by the opposite party respondent No.1 i.e. the Government of Bangladesh vide LA Case No.16-1-1961 and subsequently the said land was acquired vide Gazette Notification which was published on 6-1-1983 and a period of 22 years had passed between the date of taking over the possession of the suit land and the date of Gazette Notification and a further period of 18 years also passed since the date of Gazette Notification till the judgment and order and during these 40 years the value of the suit land has increased so many times the assessment as made by the acquiring authority is not in conformity with the value of the land at the issuance of the acquisition notice as published in the gazette on 6-1-1983.
24. Learned Additional Judge ought to have considered the deed No. 31136 of 1982, 2199 of 1982, 1983 of 19810f Mouza Kazla, which is adjacent Mouza Motihar and situated on the South Western side of the suit land of similar description with similar advantages in the vicinity and all these deeds were executed during twenty four months preceding the date of Gazette Notification as because almost all the land of Mouza Motihar was requisitioned and later acquired for Rajshahi University under LA Case No.16/57-58.
25. It appears petitioner produced different exhibits in support of their regarding compensation of the suit land when the opposite parties respondent did not produce any document as exhibits in support of their claim phenomenal rise of the value of the said land in Rajshahi since 1961 and non consideration of this aspect by the learned court below shows the non application of judicial mind.
26. Finally we are of the view that the ownership of the requisitioned property does not vested on the Government or requiring body with the requisition under section 3 of the (Emergency) requisition property Act. But it remains with the original owner till Gazette Notification under section 5 (1) of the Act. The assessment of compensation of the property by the Deputy Commissioner will have to be made with reference to the market value of the acquired land on the date of acquisition and not the date of requisition.
27. It is found that in the case land there were 13 fruit bearing mango trees. Petitioner claimed Taka 500 for each mango tree. There were 29 Khair trees, value of each tree claimed Taka 50. There were 9 Babla , 4 Date and 2 Palm trees Value of each tree has been claimed at Taka. 100 Taka 50 and Taka 50 respectively. We find that the valuations claimed by the petitioner for these trees are quite reasonable. The lower court failed to consider this aspect. He assessed the valuation of the case land at the rate of Taka 60,000 per acre. We find no reason on that basis he assessed the valuation. The valuation of the mango trees have been assessed at Taka 250 each. From the evidences it is found that there were big mango trees.
So the valuation assessed for the mango trees and those of other trees have got no conformity with the evidences. The petitioner claimed Taka 22,000 as annual income from the above mentioned fruit bearing trees at the rate of Taka 1,000 per year for 22 years i.e. from the date of taking comits possession after requisition till under order Notification under section 5(7) Procedure was trial Court has allowed only Taka 11,000 at the rate of Taka 5,000 per year. We find the amount claimed by the petitioner as loss of annual income is quite reasonable.
28. The petitioner also claimed 15% additional compensation under section 23 (2) of the Land Acquisition Act, 1894. We find the petitioner under the said law is entitled to a sum of Taka 4,11,992 which is 15% on Taka 27,46,619 i.e. the assessed value of petitioner's land. Considering the evidence both oral and documentary and the points of law involved in the instant appeal, we find merit in this appeal. Accordingly the appeal is allowed on contest against respondent No.1 and 2 without any order as to costs. The impugned judgment and partial decree dated 24-7-2001 passed by the learned Additional District Judge, 3rd Court, Rajshahi in Arbitration Miscellaneous Case No. 23 of 1984 in hereby set aside. Petitioner-appellants are entitled to get a decree of Taka 31,86,720.30 (Taka 27,66,619 of land + Taka 4,11,992 of 15% interest, in total Taka 31,89,661 minus Taka 2940.70, which the petitioner appellants had already received). We further direct that the petitioner appellants to get Taka 31,86,720.30 with interest @ 13.5% from the date of judgment till payment thereof. The respondents are directed to pay the money within 6 (Six) months from the receive copy of the judgment and order.
Since the First Miscellaneous Appeal is allowed, FMAT No.388 of 2002 filed by the Rajshahi University against the appellants of FMA No.262 of 2001 arising out of the same judgment and decree passed in Arbitralion Miscellaneous Case No. 23 of 1984 are dismissed.